' QAZI MUHAMMAD FAROOQ, J.---By this judgment we propose to dispose of the writ petition in hand as well as Writ Petition No,874/92 (M/S Paktex Limited v. Chief Controller of Imports and Exports, Peshawar etc.) as both the petitions call in question the refusal of the Controller,. Imports and Exports, Peshawar to issue cash import licences for the import of machinery for the Spinning units being set up by the petitioners of Gadoon Amazai Industrial Estate, Swabi and common questions of law and fact are involved therein.
2. Briefly, the facts forming the background of the petitions are that the petitioners are public limited companies incorporated as such and their objective is to sep up Textile Spinning Units at Gadoon Amazai Industrial Estate. In order to achieve their objectives the petitioners acquired plots at Gadoon Amazai Industrial Estate, obtained loan facility from National Bank of Pakistan and Allied Bank of Pakistan respectively as also approval of the State Bank of Pakistan for the grant of subsidy at the rate of 11% per annum. Thereafter, in the month of July, 1992 they applied to the Controller Imports, and Exports Pesawar for grant of cash import licences for the import of machinery for their spinning units but without success as the same were refused on the ground that spinning units were not included in the import policy for the year 1992-93.
3. Assailing the refusal in question the learned counsel for the petitioners contended at the outset that a vested right had accrued to the petitioners to be governed by the Import Policy for the year 1991-92, which included spinning units, as all the requisite formalities were completed by them before the promulgation of the Import Policy for the year 1992-93 and in any event the Import Policy for the year 1992-93 was prospective and not retrospective. It was next contended that inspired by the representation made by the Federal Government and the State Bank of Pakistan to the effect that the establishment of an Industrial Unit at Gadoon Amazai Industrial Estate shall carry financial accommodation consisting of 11% subsidy and mark up at the rate of 3% per annum the petitioners had not only established infrastructure for Textile Unit at Gadoon Amazai but had also entered into contracts with foreign firms for the import of machinery and as such the refusal of the Controller of Imports and Exports to grant cash import licences amounted to the negation of the said representation which was not permissible under the principles of Promissory Estoppel.
Reliance was placed on Pakistan through Secretary, Ministry of Commerce and 2 others v.
Salahuddin and 3 others (PLD 1991 SC 546). It was next contended that the petitioners being entitled to the benefits under the Scheme meant for Industrial Units at Gadoon Amazai, which had already been derived by all other Industrialists who have established Idustrial Units there, were well within their right to ask for the issuance of cash import lincences. It was lastly contended that the refusal of the Controller of Imports and Exports, Peshawar, to grant cash import licence had left the petitioners high and dry as now they cannot import machinery against cash and resultantly they will have to undo whatever has been done by them so far.
4. On the other hand it was submitted by the learned counsel appearing for the respondents that under the Import Policy cash import licences in regard to new Spinning Units can be issued for combers only to the extent of Rs,25 million and having applied for cash import licences in the month of July, 1992 the petitioners were governed by the Import Policy Order, 1992 which had come into force on Ist July, 1992 vide SRO 635(1)/92. It was further submitted that import of machinery for Spinning Units was permissible against sources of finance other than cash such as loans, credits, PAYE Scheme and Foreign Currency Account etc.
5. After giving the arguments addressed at the Bar our anxious consideration we have come to the conclusion that the contentions raised by the learned counsel for the petitioners are devoid of force. It is a matter of common knowlede that an Import Policy Order is issued by the Federal Government annually in exercise of the powers conferrd by subsection (1) of section 3 of the Imports and Exports (Control) Act, 1950. The Import Policy Order, 1991 had come into force on Ist July, 1991 vide S.R.O. 595(1)/91 and it was specifically mentioned in paragraph 1.1 that it shall remain in force until 30th June, 1991. The relevant portion of paragraph 2.15 of the said Policy, which deals with the imports of machinery and mill work reads as under:-- "2.15. Import of machinery and millwork.--Imports of machinery and millwork shall be subject to the following conditions:--
(i) The maximum C&F value up to which licences for the import of machinery and mill-work may be issued against various sources of financing of different categories is as under:--
(a) Commercial imports up to Rs,25 million;
(b) New units or expansion of existing units not falling within the specified list of industries mentioned in Appendix "A" i,e,, which are permitted to be set up without sanction, of any Government agency, up to Rs,125 million. In case of industries falling within specified list of industries, the monetary limit of Rs,125 million shall apply subject to the condition that such industries are duly sanctioned by the competent authority.
(c) Existing units, excluding textile industry, for balancing modernisation and replacement up to Rs,25 million."
' The Import Policy Order, 1992 came into force on 1st July, 1992 and the relevant portion of its Paragraph 2.15 is worded thus;- "2.15 Import of machinery and millwork.--Imports of machinery and millwork shall be subject to the following condition:-
(i) The maximum C&F value up to which licences for the import of machinery and millwork may be issued against various sources of financing to different categories is as under:- Ceilings
(a) Commercial imports. Rs,30 million
(b) New unit. Or expansion of existing units, other Rs,150 million than spinning units, weaving units, and units falling within the specified list of industries mentioned in Appendix 'A' i,e, which are permitted to be set up with a sanction of any Government Agency. In case of industries falling within specified list of industries, the monetary limit of Rs,150 million shall apply subject to the condition that such industries are duly sanctioned by the competent authority.
(c) Spinning units (for Combers only) for new units Rs,25 million or expansion of existing units.
(d) Weaving units comprising shuttleless looms for Rs,150 million new units, or expansion of existing units.
(e) Textile processing units for new units or Rs,150 million expansion of existing units.
(f) Existing units excluding textile industry for Rs,30 million balancing, modernization and replacement."
' A perusal of the above paragraphs would show that under he Import Policy Order, 1991 grant of cash import lincences in respect of new spinning units was permissible to the extent of the ceilings mentioned therein but in the Import Policy Order, 1992 the spinning units were excluded from the purview of the Policy and the grant of cash import lincenses in respect of new spinning units was restricted to combers only to the exent of Rupees 25 million. Admittedly, the petitioners had applied for cash import licences after coming into force of the Import Policy Order, 1992, therefore, they cannot draw any premium from the Import Policy Order, 1991 which had expired on 30th June, 1992.
Their applications were thus rightly turned down by the Controller of Imports and Exports, Peshawar in view of the provisions of the Import Policy Order, 1992 Vested rights to be governed by the Import Policy Order, 1992 would have accrued to the petitioners if they had applied for grant of cash import licences during the subsistence of the Import Policy Order, 1991 and before the disposal of their applications the Import Policy Order, 1992 had come into force. In that eventuality the contention in regard to the prospective nature of the Import Policy Order, 1992 would have been relevant. In the absence of such applications and any commitment on the part of the Federal Government in respect of grant of cash import licences no vested right can be claimed on the strength of completion of certain formalities necessary for establishment of a Spinning Unit. There is also no indication on record that cash import license in respect of a new spinning unit other than cumbers was issued to any applicant who had applied after coming into force of the Import Policy Order, 1992. The doctrine of promissory estoppel finds no place in these petitions as issuance of a cash import licence has no nexus with the incentives provided by the State Bank of Pakistan in the shape of mark up and subsidy. It is nowhere mentioned in YOD circular No,2 dated 3rd May, 1987 issued by the State Bank of Pakistan (Annexure-J) that the entrepreneurs to whom finances are provided at a concessional rate shall be entitled to import the desired machinery against cash.
There is also no document on record containing such a promise on behalf of the Federal Government. There is also no positive proof that the petitioners have already entered into contracts with the firms abroad for the purchase of machinery. The record of Writ Petition No,874/92 contains no document at all pointing to such a cntract. The documents pressed into service by the petitioner in the petition in hand consist of Pro Forma Invoices which cannot be equated with concluded contracts. The authority cited by the learned counsel for the petitioners does not apply to the facts of this case as in that case import licence was sought on the strength of a No- Objection Certificate' issued by the Federal Government under a Scheme known as N.R.1 Scheme which provided that no sanction of any sort would be needed after a Non-Objection Certificate' has been granted and on the representation of the Government contracts for import of goods had already reached Karachi Port in some cases and in. One case were lying at U.K. Sustaining demurrage. In so far as the question of financial loss to be entailed by the refusal is concerned the petitioners must thank themselves alone for this rather unsavoury situation. It was clearly mentioned in the Import Policy Order, 1991 that it shall remain in force till 30th June, 1992 and the record discloses that the petitioners had completed the requisite formalities well in time but for reasons best known to them they had not applied for Import permits on or before the target date.
Be that as it may, the Import Policy Order, 1992 has not closed all the doors on them as they can import the desired machinery against sources of finance other than cash such as loans, credit, PAYEE Scheme and Foreign Currency Account etc. ' For the foregoing reasons both the writ petitions are dimissed with no order as to costs.